Law

2:44 pm

Mon February 25, 2013

Is The Voting Rights Act Relevant In 2013?

This is TALK OF THE NATION. I'm Jennifer Ludden in Washington. Wednesday, the Supreme Court will hear arguments on the Voting Rights Act. At issue: whether to uphold Section Five, which requires nine states and parts of seven others, to get federal approval to change their voting laws. Congress just reauthorized the mandate in 2006.

At heart, the case raises the issue of fairness, the states effected have a history of making it difficult for black citizens and other minorities to vote, and the Voting Rights Act in 1965 was meant to protect their rights. We'd like to hear from you. What do you need to see to trust your state or local government on issues of discrimination. Our number is 800-989-8255. Our email address is talk@npr.org. And you can also join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Later in the program, Robert Reich calls a proposal to raise the minimum wage to nine dollars a no-brainer. But first the Voting Rights Act. Our legal affairs correspondent Nina Totenberg joins us here in Studio 3A. Welcome.

NINA TOTENBERG, BYLINE: Thank you.

LUDDEN: So set up, what is the legal issue that is at the heart of this case?

TOTENBERG: OK, I'm going to be a little long-winded here. You sort of have to go back to 1965, when the Voting Rights Act was enacted. It has been the single most successful, most effective piece of civil rights legislation in the nation's history and has provided for an exponential growth in minority voting throughout the country or those - especially those covered jurisdictions.

These were areas of the country, by and large, I think it's nine states, mainly in the South, a few others, and parts of I think another seven states. And - but in the South, which is really where the focus of the law was, there were enormous bars to voting by African-Americans, everything from literacy tests, to tricks, to changing the polling place at the last minute, to violence.

And in order to stop all that, they set up Section Five, which is basically half o the law. The other half says if you can prove there's intentional discrimination, go to court. And that applies to the whole country, and there are a whole bunch of standards to that.

But Congress said look, there has been - there have been too many tricks going on here, too much awfulness going on. We're going to make it so these places that have a history of preventing minority voting have to come to us in the Justice Department or a federal court in Washington before they change the law. It's just that simple. And we will let you change the law if we think it doesn't have an adverse effect on minority voting.

And as I said, the law has been enormously successful. Today I think the Justice Department only vetoes about one percent of the changes that various jurisdictions ask for.

LUDDEN: And it's been reauthorized numerous times.

TOTENBERG: Four times, and in the latest time, in 2006, it was unanimous in the Senate, and I think there were only 30 no votes in the House, and it was the Republicans who led the charge. They were in control then, and they led the charge. And - but conservatives, some conservatives, have felt that the law unfairly discriminates against the South now, that the South is no longer the place it once was and that it should be treated like the rest of the country.

LUDDEN: And so what is the basis for this challenge that will now be heard this week?

TOTENBERG: The basis for this challenge is that there is no longer any reason to have pre-clearance for any part of the country, that it is no longer justified, that Congress didn't change the formula for which areas were covered, that - basically not since '65, slightly updated in '72, that there have been huge demographic changes since then, and Congress didn't change any of that and that nobody really deserves to be singled out this way anymore.

LUDDEN: So the case, though, comes from a county in Alabama. But they're arguing that it should - Section Five of the Voting Rights Act should be done away with for all - everyone.

TOTENBERG: For everybody. It's the microcosm.

LUDDEN: And they base this on what?

TOTENBERG: Well, they say we're a 90-percent white county, look, we've got places where there's a local municipality mayor who's black who's been elected. We have a countywide member of the school board who's black who's been elected. Minorities in the county don't quite see it that way. They say they've tried to - some sort of bait-and-switch things on them that have been stopped by the Justice Department, and in fact the county does not have a clean record for 10 years.

If it did have a clean record for 10 years, it could bail out of the provisions. It would be...

LUDDEN: That's the bar for bailing out?

TOTENBERG: Yes, you have to have a clean record for 10 years, and if it did, it could say please don't - let us out of pre-clearance because we've been clean for 10 years. It doesn't have...

LUDDEN: But have counties done that, or is it...?

TOTENBERG: Oh yeah, there are a lot of counties that have done that, especially in places like Virginia, where it seems to mushroom. So if one county does it, see that it's pretty easy, another county does it, another county does it. But it has - the numbers of places that have bailed out has grown quite a bit, especially since the last time the Supreme Court heard this case, which was four years ago.

It focused on the bailout provision and said let's see how that works.

LUDDEN: So the last time this came up before the Supreme Court, 2009, the court did not rule directly on the constitutionality of this Section Five that we're talking about.

TOTENBERG: It dodged the bullet, essentially.

LUDDEN: So what can we glean, if anything, about what may happen this time?

TOTENBERG: Well, it was an eight-to-one decision in which Chief Justice Roberts, writing for the court, said we are loath to overturn a judgment of Congress too easily, especially when there's an easy way for us to deal with this because this jurisdiction should've been allowed to bail out, and it never applied for a bailout because it thought it wasn't permitted to, it was too small to do that.

And any jurisdiction should be allowed to bail out and seek to do that. Let's put that to the side for a moment. Then the chief justice went on and all but held his nose in saying we're not going to deal with the rest of this now. And he said the South has changed. He said those words.

The entire tone of the opinion was extremely hostile to the Voting Rights Act while at the same time acknowledging that it had done an enormous job since its original enactment but seeming to suggest that the court is, or at least a majority of the justices of the court are, quite ready or on the precipice of being ready to throw it out, or at least the pre-clearance section of the law.

LUDDEN: Joining us now is Alabama Solicitor General John Neiman. He is at our member station WBHM in Birmingham, Alabama. And welcome to you.

JOHN NEIMAN: Thank you, Jennifer, pleasure to be here.

LUDDEN: Now in the state's brief to the court, the state of Alabama acknowledges problems in its past. It concedes that Alabama was really a key player in the events that made Section Five of the Voting Rights Act necessary. But then it says that, quote, the violence, intimidation and subterfuge that led Congress to pass Section Five and this court to uphold no longer remains. On what basis do you argue that?

NEIMAN: Well, let me just step back and say really the core thesis of our brief is that in 2013, there shouldn't be covered states of America and uncovered states of America, there should simply be the United States of America. Now we're not the party in the case, Shelby County is the party, and Shelby County and the United States will be making all sorts of technical, legal arguments about whether we are right about that proposition.

But our perspective is one that's informed more by history and our own current understandings of what it's like to be on the ground in terms of being someone who works for a state or local government in one of these covered jurisdictions today.

For example, I'm the Alabama state government's lead appellate attorney, and I am 38 years old. That means I was born in 1974, a decade after the tragic events that made Section Five completely constitutional and appropriate during the civil rights struggle. And most people who live in Alabama and work for their various governments in Alabama are like me. We just don't have a connection with the events of 1965.

Now look, to be sure, the things that happened on the same Birmingham streets where we now live in the same Montgomery government buildings where we're now privileged to work and in the same university buildings in Tuscaloosa where we hope to send our kids one day, were the things that gave rise to the civil rights struggle.

And we all recognize that no matter what we do, our state's name will always be associated with the civil rights struggle, both the terrible things that happened, but also the great things that happened in terms of progress. That's how it should be. No one is running away from that history.

But the question in this case is not whether it was rational and reasonable for Congress to decide back in 1965 that it was necessary to take these extraordinary measures to keep people like Governor George Wallace in line and to ensure that places like Alabama remained part of the country that we could truly call the United States of America. The question now before the court, is whether it was reasonable for Congress to declare in 2006 that it would continue to divide the country in precisely the same way, using precisely the same coverage formula it used back in 1965, and the question is really on a personal level whether it's appropriate for Congress to presume, in light of the conditions that are now present in states like Alabama, that this new generation of leaders and citizens is as untrustworthy as people like Governor Wallace were back in 1965.

LUDDEN: Sure, but I read a Washington Post article this weekend that noted that every statewide elected official in Alabama is white today. So how is that supposed to inspire this trust among the state's many black voters?

NEIMAN: Well, a few responses. One is that as I think someone said at the outset of your program, the big problem in Alabama in 1965 was - there were really two big problems. One was that registration and turnout among minority voters was abysmally low. And that was so for a related reason, one that Nina mentioned during her opening remarks: The conduct of governmental officials in Alabama during that time was immoral and awful.

Violence and the like were keeping people from registering to vote and from turning out to the polls. That's simply not the case anymore. Minority voter turnout and participation is extremely strong. Now how that has translated to statewide office, I think it's fair to ask, well, why doesn't Alabama have a statewide official who is African-American, that's something that needs to happen. It's been the case in the past; hopefully it will be the case in the near future.

But if you look at local representatives and members of the legislature and the like, minority representation among members of the legislature is very, very close to the overall percentage of African-Americans, for example, in the state.

LUDDEN: All right, and we're going to continue the conversation in a moment with Alabama Solicitor General John Neiman. What do you need to see to trust your state and local government on issues of discrimination? Call us at 800-989-8255. Or send us an email, talk@npr.org. I'm Jennifer Ludden. This is TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

LUDDEN: This is TALK OF THE NATION. I'm Jennifer Ludden in Washington. In 1965, President Lyndon Johnson signed the Voting Rights Act into law, nearly 100 years after ratification of the 15th Amendment, which granted African-American men the right to vote.

But in the South in the 1960s it was still incredibly hard for black Americans to vote. They faced intimidation and violence but also bureaucratic measures like poll taxes and literacy tests. Now the Voting Rights Act is under review. The Supreme Court will hear arguments Wednesday, and we've asked two players to join us to parse out the arguments for why the act should be upheld or why states should be able to pass election laws without federal approval.

We'd also like to hear from you. This is a story that at its center is about whether governments can be relied on to deal with their citizens equitably. So tell us: What do you need to see to trust your state and local government on issues of discrimination? Give us a call, 800-989-8255. Or send us an email, talk@npr.org, and you can share your story at our website. Go to npr.org, and click on TALK OF THE NATION.

And let's get a caller into the conversation. David is in Fayetteville, Arkansas. Welcome to TALK OF THE NATION.

DAVID: Well, thank you. I'm calling because Arkansas is the only state in the former Confederacy that has never elected to statewide office or to Congress an African-American. I'm a white male, age 55. I grew up just as Jim Crow was ending. I abhor what my parents' generation and the generations of white people before them did, and I think that the Voting Rights Act played - has played an excellent and absolutely needed role.

But what's happened here just since November, was for the very first time since Reconstruction, the Republican Party has taken over both the - both houses of our state legislature, and for the very first time they are proposing a voter ID law. It probably will pass. And what we see here, I think, is a repetition of a theme that's being promoted by Republican legislatures in other states.

LUDDEN: So what would you want to see, though, David, to feel comfortable that everyone had a fair vote? What would you - what changes would you need to see?

DAVID: Well, first off, I think that the Democratic Party at least needs to get its act together and make sure that African-American leaders in our state are getting the support they need to get elected to statewide office or to Congress. But that hasn't happened because our Democrats are mostly conservative here.

So we have - I don't see any quick solution to what's ongoing discrimination. In fact up until November we had a self-proclaimed white supremacist in our state legislature who was a Republican but, you know, he got voted out of office because he talked too much about what his beliefs were.

LUDDEN: Well, so the process did work there, I guess you could say, after a while. David, thank you so much for your call.

DAVID: You're welcome, thank you.

LUDDEN: And John Neiman, state solicitor general for Alabama, still on the line with us, what's your response to someone like that, who obviously is not in your state but just isn't convinced that we're past the Voting Rights Act yet?

NEIMAN: Well, look, no one's contending that we're past the Voting Rights Act, and I think that's an important misconception that's worth clearing up at the outset. As Nina said during her initial remarks, there is a provision of the Voting Rights Act, Section Two, that prohibits discriminatory practices in voting so that if, for example, a state were to enact a law that were discriminatory for any reason that a particular plaintiff or group of plaintiffs believed was unlawful, that group of plaintiffs could go into court and challenge that provision.

They could get a temporary restraining order against it to preclude it from being used in the next election, and they could eventually get it struck down. The question here is whether Section Five, which is a separate provision that was designed to be only temporary in nature, was designed to only have a five-year lifespan back in 1965, ought to still apply to a limited subset of states.

And the answer to that question, I think, is no. Congress simply didn't show that these states in particular need to be singled out in 2006 and now 2013 as worse than the rest of the United States. I think that the entire United States ought to be covered by Section Two, and that ought to be able to protect voting rights throughout the country, equally in a place like Alabama and in a place like Arkansas and in a place like Illinois.

LUDDEN: So there would still be room for redress even without Section Five is what you're saying.

NEIMAN: Absolutely. I mean, the question here is whether you're still going to have this provision that requires state and local governments to go to the federal government for advance permission to change the law, no matter how innocuous the change in law might be.

And that - it made sense to have that provision back in 1965 to stem off the crisis that was occurring, I'm sad to say, in my home state, although I wasn't around at that point in time, but it certainly doesn't make sense to have that emergency time-out provision in place still in 2006 to redress the very different issues that we see in front of us today.

LUDDEN: All right, Alabama Solicitor General John Neiman joined us from member station WBHM in Birmingham. Thank you so much for your time.

NEIMAN: Thank you very much.

LUDDEN: I'm joined now by Ryan Haywood, he's the director of the Political Participation Group for the NAACP Legal Defense Fund. And he's part of the litigation team that will argue to uphold the act on Wednesday's hearing. He joins us here in Studio 3A. Thanks so much for coming in.

RYAN HAYWOOD: Thanks for having me, Jennifer.

LUDDEN: So the state of Alabama notes that, you know, it has been 16 years since the Justice Department objected to changes that it wanted in election law, that everything it's requested has been approved. That's a long time. Is it not convincing enough for you?

HAYWOOD: Well, it's not only not convincing, it's actually factually inaccurate. The very jurisdiction that has mounted this particular constitutional challenge, Shelby County, had within it a jurisdiction that recently, in 2008, drew an objection based on a discriminatory redistricting plan that it sought to have approved.

And it's important to unpack for your listeners precisely what this law has meant for people on the ground in the places covered by Section Five. Alabama has a long and unbroken line of discrimination in voting that goes back to slavery, extending through the Civil War and Reconstruction, up through the Bloody Sunday March, over the Edmund Pettis Bridge from Selma to Montgomery, up through an important line of cases called the Dillard line of cases, which I'll talk about briefly, and up through a recent discriminatory attempt by the city of Calera, in Shelby County, to pass a discriminatory redistricting plan.

LUDDEN: And that plan actually, am I correct, led to the town's only black councilman being - or councilperson not being re-elected.

HAYWOOD: That's right, Jennifer, and so in the Dillard line of cases, the state of Alabama was found to have used intentional discrimination and at-large methods of elections in better than 170 jurisdictions. To settle this line of cases, these very jurisdictions, better than 170, adopted non-discriminatory, district-based voting schemes.

One of these schemes was elected in the city of Calera, which allowed for the election of an African-American for 20 years in a particular seat; that was a majority black seat. In 2008, the city of Calera sought to adopt a discriminatory redistricting plan which eliminated the sole African-American seat by reducing the black population there from 70 percent to 29 percent, leading to your point, Jennifer, to the loss of the sole African-American on the city council.

Now, the Department of Justice rejected this redistricting plan and the election that was held under it, required the city of Calera to redraw its electoral boundaries in a non-discriminatory way, and to hold another election in which African-Americans in this district elected their preferred candidate of choice, who happened to be African-American.

It's simply not true - and I think for many of your listeners it strikes them as odd - that Alabama, the state that gave birth to the Voting Rights Act, which itself is recognized as the greatest piece of civil rights legislation, indeed the greatest piece of legislation ever passed, would be mounting this constitutional challenge given that it has not demonstrated, even recently, its willingness to operate its electoral processes fairly and in a way that doesn't discriminate against its people of color.

LUDDEN: Right. Let's get a caller here on the line. Curtis is in Salem, Oregon. Hi, Curtis, welcome to TALK OF THE NATION.

CURTIS: Hello.

LUDDEN: Go right ahead.

CURTIS: Yeah, I'd like to see the attorney generals of the states get together and come up with a common-sense, common approach to elections and gerrymandering and all that stuff. I don't want to give up the states' rights to control it, but I don't like it being in the control of parties.

LUDDEN: So kind of a nonpartisan approach is what you're suggesting, and a uniform approach.

CURTIS: Yeah, and I also want it to be - we're moving like crazy in this country. I grew up in New York. I'm now in Oregon. My first experience with voting was having someone pay my mother $5 to vote for their party. So - and I've lived in Albany, New York, which had the same Democratic machine for over 30 years. So I've experienced the other side of negative party politics.

LUDDEN: All right, thank you for the call, Curtis. And let's hear from someone else. Casey in Jacksonville, North Carolina. Hi, Casey.

CASEY: Hi, there. I just wanted to say that I find it odd, and not really shocking, but it is somewhat sad, to hear any elected or state official from the South deny - I mean I understand that what he's saying is we're not the same as the people who required this kind of law. But in reality, the only thing that's changed is that this kind of discrimination has become less overt.

In other words, we've moved to a more covert form of discrimination. And sometimes it's harder to see. And it kind of lulls people into this false sense of security, like oh, we live in a colorblind nation, or everything's OK. I think at the last election, when we just see the redistricting and the tricks and all the ways that different kinds of places in the South - and not a few states in the North - used to try to eliminate the minority vote or try to manipulate it, I think it is clear that the effects of what happened in the '60s still are with us today. Maybe it's not as blatant or overt as it was then, but if it is still covert, even if it weren't, the effects of what happened in the '60s aren't going to be gone in 40 or 50 years. It's going to take a long time to overturn the attitudes that accompanied those kind of behaviors.

LUDDEN: All right. Casey, thanks so much.

HAYWOOD: Can I pick up - I think the caller makes a very important point.

LUDDEN: Ryan Haywood, go ahead.

HAYWOOD: The caller makes a very important point about what it means to ferret out racial discrimination in voting. The Voting Rights Act at its core is about ushering in progress, so there's nothing about the gains have been made since 1965 in Alabama and other places in the country covered by Section 5 and recognizing that we need to make more progress. And that's precisely what Congress did in 2006 when it considered whether to reauthorize the Voting Rights Act for another 25 years.

Congress looked at those places covered by the Voting Rights Act and found that in those places, discrimination against voters of color was more intense. It was more persistent. It was more adaptive. In the past reauthorization period, Section 5 served to block more than 1,000 discriminatory proposed voting changes but for Section 5 would have harmed minority voters from exercising their franchise.

LUDDEN: Although to maybe the call - the recent caller's point, we have an email from Blaine in Pennsylvania: Not only should the Voting Right Act be continued, it should be expanded to include all states. The gerrymandering that is still done affects all minorities. And he's in Pennsylvania.

HAYWOOD: You know, and on that point, Jennifer, Congress considered whether to add additional jurisdictions in 2006 when it looked fresh at the Voting Rights Act and Section 5 in particular. And what it found is that, though, there's discrimination that happens outside of the covered states - and we saw this in the last election in Pennsylvania, in Ohio, in Wisconsin - what Congress found in 2006 is that the type of discrimination is of a different character in the covered jurisdictions such they require stronger medicine.

It requires Section 5 in those places because the type of discrimination is often one where a court order is followed by a serial attempt to block voters of color from exercising their political strength.

LUDDEN: You're listening to TALK OF THE NATION from NPR News. But, Ryan Haywood of the NAACP, what about, you know, the proportion of blacks - in 1965, the proportion of blacks that were voting was a big issue in passing this right. And Alabama is the state bringing this challenge this week, points out that in 2004 and 2008, black voter turnout in that state was greater than white voter turnout.

HAYWOOD: I think that's an important point, and I think that reflects the Voting Rights Act doing important work. The fact of increased voter registration and participation on the part of black voters and other voters of color is a reflection of Section 5 doing important work in empowering voters of color. But that's only one indicia of understanding how voting discrimination happens. Alabama, for example, though the black population in Alabama is 25 percent, Alabama has no statewide black elected officials.

In a very recent federal district court opinion in 2011, a federal district court found that racially-polarized voting is so pronounced in the state and that intentional discrimination runs to the highest levels of the state legislature that black voters in particular are discriminated against in meaningful ways. It's not surprising for many who understand the way that racially-polarized voting plays out in Alabama. In the 2008 presidential election, though African-Americans supported President Obama at the tune of 90 percent, only 10 percent of white voters (unintelligible) for him, that was his worst showing at all the 50 states.

And he didn't fare much better in 2012 when he received 13 percent of the white vote. So the fact is that in Alabama and in many of the covered jurisdictions across the country, racially-polarized voting persists in a way that undermines minority voting strength so too do serial efforts to block their votes as they seek to exercise them.

LUDDEN: Let's squeeze in one more call here. Aaron in Tucson, welcome to TALK OF THE NATION.

AARON: Hello?

LUDDEN: Yes. Go right ahead.

AARON: Yeah. I feel like I'd be able to trust my government more, you know, in regards to discrimination if I were to actually see policies enacted that will allow teachers to teach more cultural competency. You know, I work at a drug rehab facility, and we take cultural competency classes regularly because we deal with such a diverse array of ethnic backgrounds. And in such, we have to cater to their culture and their traditions, you know, so that they actually feel like they can be safe, and that they're in an environment where they can excel and move forward in their own recovery.

And I think that translates, you know, into a nationwide perspective, locally even.

LUDDEN: Thank you so much, Aaron. Well, Ryan, let me ask you, what would you want to see to say, OK, we can let the Section 5 or the Voting Rights Act go?

HAYWOOD: Sure. I mean, you know, I'll be transparent when I say that all of the lawyers where I work, at the NAACP Legal Defense Fund, have as an aspiration, putting ourselves out of work. We do dream of a world in which a voter of color is not constrained by his or her color or that the opportunities for voters of color not constrained by their race or ethnic identity. But the fact is as Congress recognize in 2006, we're not there yet. In the 1,000 proposed changes that were blocked by Section 5 speak to that loudly and clearly. So we'll know when we get to closer to not needing Section 5 when fewer racy discriminatory measures are attempted to be enforced by the covered jurisdictions.

LUDDEN: Anything else is at the bar?

HAYWOOD: I will say this Wednesday, when the Supreme Court considers this case, they will have before - it's their own president four times upholding the constitutionality of the Voting Rights Act over four decades and expands the 15,000-page record developed by Congress in support of the Voting Rights Act and the lived(ph) experiences of voters on the ground. Millions of voters on the ground all speak to the Supreme Court upholding the Voting Rights Act in this challenge.

LUDDEN: All right. Ryan Haywood is the director of political participation for the NAACP Legal Defense Fund, and he was here in Studio 3A. Thank you so much.

HAYWOOD: Thanks for having me.

LUDDEN: Up next, we turn to the Opinion Page, where Robert Reich calls for racing the minimum wage to $9 at least. Stay with us. I'm Jennifer Ludden. It's TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.